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ABA's Task Force on the Financing of Legal Education

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ABA's Task Force on the Financing of Legal Education AMERICAN BAR ASSOCIATION TASK FORCE ON THE FINANCING OF LEGAL EDUCATION REPORT I. The Task Force and Its Charge This is a critical time for legal education as schools face declining enrollments and revenues, and their students face increasing tuition and debt along with a job market that has seen only modest recovery. James Silkenat, then President of the American Bar Association (ABA), charged the ABA’s Task Force on the Financing of Legal Education with addressing these timely and important issues, and its work has been encouraged and supported by his successor as ABA President -- William Hubbard. The Task Force undertook this work with an acute awareness of the significance of the legal profession to individual clients as well as to the larger society.1 The Task Force on the Financing of Legal Education has now completed its work, which this report sets out. It is important to state that the views expressed in this report have not been approved by the ABA House of Delegates and, accordingly, should not be construed as representing policy of the American Bar Association. Dennis W. Archer, a former president of the American Bar Association, chaired the Task Force on the Financing of Legal Education and was joined by fourteen distinguished members, including lawyers, deans, young lawyers, and others active in business and consulting related to financing legal education. The Task Force’s roster is attached as an appendix to this report (Appendix A). Dr. Stephen Daniels, Senior Research Professor at the American Bar Foundation, served as Consultant to the Task Force. Barry Currier, Managing Director of Accreditation and Legal Education at the ABA, provided staff support. The Task Force held four meetings and additional conference calls over the last year as it completed its work. Two of those meetings were two-day public hearings, one at the 2014 American Bar Association Annual Meeting in Boston, Massachusetts and the other at the 2015 American Bar Association Midyear Meeting in Houston, Texas. In seeking a broad array of viewpoints, the Task Force sent letters of invitation to a wide range of interested parties who might have insights and opinions on the issues the Task Force was considering. Among the invitees were the President of the United States, who had made a statement on the structure of law school programs and the expense of law school; student leaders of the American Bar Association Law Student Division, who offered testimony to the Task Force; members of the United States Supreme Court; state 1 The Task Force was created on May 6, 2014, in the wake of the Report of American Bar Association Task Force on the Future of Legal Education. Among the earlier Task Force’s recommendations was the establishment of a task force to “examine and recommend reforms concerning the price and financing of law school education,” an issue not addressed in detail by that Task Force Report and Recommendations: American Bar Association Task Force on the Future of Legal Education (2014), 30. 1 Supreme Court justices; and leaders of the bar and bar organizations, including the American Bar Association. Further, the Task Force heard from law school deans and faculty members, and received testimony from writers and commentators on the state of legal education. The Task Force expresses thanks to the many who took time to prepare written comments and to testify before it. Its work is better for their ideas, observations, and data. Additionally, since the Task Force was to conduct as much research as possible on the issues at the heart of its charge, Managing Director Currier provided to the Task Force Consultant access on a confidential basis to material not publicly available from the annual questionnaires submitted to the ABA Section of Legal Education by ABA-approved law schools. A list of those who appeared before the Task Force and/or submitted formal written material is attached as an appendix to this report (Appendix B). The Task Force’s charge included a broad range of issues and key among them were: the cost of legal education for students; the financing of and business models for law schools; student loans and educational debt; and law school practices regarding tuition discounting, merit-based grants/scholarships, and need-based grants/scholarships. Dollars and cents are the clear focus of these issues and their connections to the current criticisms of and challenges facing legal education – both those from within legal education2 and those from without3 – are also clear. Among the prominent dollars and cents concerns the Task Force heard about at its public meetings were claims about: the current availability of loans contributing to the increasing price of legal education; the heavy debt burden for students making law school inaccessible and affecting career and life choices; and tuition discounting based on merit which tends to benefit those students who are more likely to have financial resources entering law school or better economic outcomes after graduation. The Task Force also heard much about the perverse effects of law school ranking schemes, with the race for higher rankings contributing to the increasing price of legal education. The Task Force heard about certain proposals for change such as imposing caps on student loans or even eliminating the current federal student loan program altogether (as one presenter argued). These are all relevant issues for continued discussion and inquiry. It is important to note that many of the most critical commentaries and most drastic solutions proposed came at the nadir of the recent economic downturn, when anxieties about the job market ran high and the realities showed fewer opportunities for 4 new law school graduates and lay-offs for recent graduates. Since then there have been 2 See Brian Tamanaha, Failing Law Schools (Chicago: University of Chicago Press, 2012 3 David Segal wrote a series of articles in the New York Times in 2011-2012 on the challenges facing the legal academy, among them “Is Law School a Losing Game?” January 9, 2011, http://www.nytimes.com/2011/01/09/business/09law.html. 4 A recent study shows that the job situation still remains problematic for those who graduated at that nadir, see Deborah Merritt, “What Happened to the Class of 2010? Empirical Evidence of Structural Change in the Legal Profession,” Ohio State Public Law Working Paper No. 290; HLS Center on the Legal Profession 2 important market corrections, many of which are still underway. As this report will later show, law school enrollments have significantly declined, the rate of increase for tuition has slowed, and the amount of tuition discounting has increased. Some even see glimpses of improvement in the job market. Noting this timing is not meant as a way to minimize the challenges facing legal education, but as a caution about against responding too reflexively. The Task Force’s charge also included deeper and even more fundamental concerns – the challenges posed by such dollars and cents issues to the unique role the legal profession plays in our political system and in maintaining and fostering the rule of law. As the preamble to the ABA’s Model Rules of Professional Conduct begins, “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”5 Without a robust system of legal education that is open to and accessible by all segments of American society, the profession withers and looks less and less like society itself. Consequently, its ability to play its unique role becomes increasingly problematic. The opening line of Alfred Reed’s now almost century-old, groundbreaking study of legal education still resonates today regarding the broader importance of legal education beyond any private gain on the part of an individual law student: “Our contemporary American system of legal education, although it contains elements of great value, is generally recognized to be defective in many ways. Efforts to improve it cannot accomplish their full purpose unless certain fundamental considerations are borne in mind.”6 He continues: Foremost among these determining factors is the position that lawyers occupy in the state. Whatever incidental purposes are cherished by particular law schools, the main end of legal education is to qualify students to engage in the professional practice of the law. This is a public function, in a sense that the practice of other professions … is not. Practicing lawyers do not merely render to the community a social service, which the community is interested in having them render well. They are part of the governing mechanism of the state. Their functions are in a broad sense political … [and spring] … fundamentally from the fact, early discovered, that private individuals cannot secure justice without the aid of a special professional order to represent and advise them. To this end lawyers are instituted, as a body of public servants, essential to the maintenance of private 7 rights. Research Paper No. 2015-3. Available at SSRN: http://ssrn.com/abstract=2577272 or http://dx.doi.org/10.2139/ssrn.2577272 5 Model Rules of Professional Conduct: Preamble & Scope, http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_ conduct/model_rules_of_professional_conduct_preamble_scope.html 6 Alfred Z. Reed, Training for the Public Profession of the Law: Historical Development and Principal Contemporary Problems of Legal Education in the United States with Some Account of Conditions in England and Canada (Boston: D.B. Updike, the Merrymount Press, 1921), 3. 7 Id. 3 This same idea of the practice of law as a public good is echoed in the report of the Task Force on the Future of Legal Education: “Society has a deep interest in the competence of lawyers, in their availability to serve society and clients, in the broad public role they can play, and in their professional values.
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